The Ninth Circuit's Treatment of Sexual Orientation: Defining 'Rational Basis Review with Bite'

10 Pages Posted: 8 Jun 2014 Last revised: 25 Jun 2021

See all articles by Ian C. Bartrum

Ian C. Bartrum

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: 2014

Abstract

When the Ninth Circuit handed down Witt v. Department of the Air Force, President Obama and then-Solicitor General Kagan declined to take an appeal to the Supreme Court. At the time, it seemed that most advocates of “Don’t Ask, Don’t Tell” believed that the administration made that decision because it was afraid the Supreme Court would reverse the Ninth Circuit. If that fear was perhaps well-founded in 2009, it is certainly less so now. In the wake of SmithKline Beecham Corp. v. Abbott Laboratories, as well as recent District Court decisions, opponents of federal constitutional protection for gay people and same-sex couples must feel much less confident in their position. Circuit courts are now deeply split on the issue, and the prevailing winds are blowing west. The Ninth Circuit has not only made explicit what every reasonable observer already knew — that Romer, Lawrence, and Windsor each applied something more searching than traditional rational basis review — but it has also provided a standard with which to analyze sexual-orientation cases moving forward. To paraphrase the court, to justify intrusions into sexual privacy or disparate treatment of gay people, the state must demonstrate (1) that its actions are necessary to significantly further an important governmental interest; and (2) that no less burdensome approach is likely to achieve the same results. This seems like an eminently sensible test, and it is one that the justices would do well to adopt when this question inevitably makes its way back onto their docket.

Keywords: same-sex marriage, ninth circuit, sexual orientation, gay rights, SmithKline Beecham Corp. v. Abbott Laboratories, United States v. Windsor, Lawrence v. Texas, Equal Protection Clause, Due Process Clause, rational basis, heightened scrutiny

Suggested Citation

Bartrum, Ian C., The Ninth Circuit's Treatment of Sexual Orientation: Defining 'Rational Basis Review with Bite' (2014). Michigan Law Review First Impressions, Vol. 112, p. 142, June 2014, UNLV William S. Boyd School of Law Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=2446961

Ian C. Bartrum (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

HOME PAGE: http://https://law.unlv.edu/faculty/ian-bartrum

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